In a satisfying win for Rackemann, the Appeals Court today upheld a Land Court decision that inland lot owners hold no easement rights over our clients’ waterfront property.

Loiselle v. Hickey concerns a large subdivision in Dennis with a number of ways leading to Cape Cod Bay.  An earlier case between many of the same parties established that the inland lot owners had easement rights in all of those ways.  In Loiselle, many of the same the inland lot owners argued that they also had the right to use the private beach between those ways for recreational purposes.

The Appeals Court rejected that claim.  While the decision does not break new legal ground, it does serve as a helpful review of the basic legal principles governing waterfront land.

Continue Reading More Beach Rights Litigation

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A Massachusetts appellate court has ruled for the first time that new land which accretes to registered waterfront land is treated as registered land automatically, without the registered landowner filing additional proceedings.

In Brown v. Kalicki, decided earlier this week, neighbors sought to establish an easement by prescription to use for recreational purposes a


Earlier this month the Supreme Judicial Court (SJC) issued an important decision in the case of Martin v. Simmons Properties, LLC.  Mr. Martin holds an easement over the land of the defendant, Simmons.  Simmons had blocked part of Martin’s easement.

Land in Massachusetts can be registered or unregistered.  Registered land has some special protections not afforded to

My colleague and fellow MLUM contributor Johanna Schneider will be one of the panelists at a CLE program sponsored by the Boston Bar Association entitled “Understanding the Land Court:  The Ins and Outs of Litigating and Dealing with the Registered Land System.  Also on the panel is my former Rackemann colleague, Land Court Justice Robert B. Foster.  The program is happening on Tuesday, October

Theoretically, owners of registered land are entitled to rely on the information contained in their certificates of title.  To the chagrin of many, however, that is no longer the case.  In its decision this week in Williams Bros. Inc. of Marshfield v. Peck (pdf), the Appeals Court affirmed a Land Court ruling that an appurtenant easement is extinguished when the dominant

GIO pierMost coastal states own the land seaward of the high water mark, which includes the so-called “tidal flats” between the low and high water marks.  In Massachusetts, however, the tidal flats are private, but subject to the public’s right to fish, fowl, and navigate, which has generally been characterized as an easement for these purposes.  The “submerged land” seaward of the low water mark is owned by the Commonwealth.  Much of this land has been granted or licensed to private individuals or companies, a centuries-old practice intended to promote commerce.  When used by a private company, these submerged lands have been characterized as subject to a condition subsequent that they be used for a public purpose.  These principles, which have evolved from the public trust doctrine, are codified in M.G.L. c. 91, sometimes called the “Waterways Act.”

The public’s rights in coastal land are at issue in the Supreme Judicial Court’s recent decision in Arno v. Commonwealth (pdf).  Arno’s land bordered Nantucket Harbor and included filled tidal flats and submerged lands — referred to collectively as “tidelands.”  He was granted a waterways license to replace a dilapidated building with a new building that would be office space and residential condominiums, but the license included conditions requiring public access over his property, publicly-available restrooms, and so on.  He looked to the courts for relief.

The Land Registration Act

The basis for Arno’s claim was the Land Registration Act, which provides a process by which the Land Court ascertains title to land so that land becomes free of all rights not specifically listed in the court’s certificate.  Arno had a Land Court certificate, which he believed established that he owned the land on which he proposed to build in fee simple, free of any public rights in tidelands.  The Supreme Judicial Court disagreed.  It declared that Arno’s land is still subject to the public’s rights. 

Continue Reading Commonwealth v. Arno: There Aren’t Enough Words to Describe the Public’s Rights In Tidelands